Teran v. Coloplast Corp.

633 F.Supp.3d 1103

Nidia TERAN, Plaintiff, v. COLOPLAST CORP., Defendant.

No. 19 C 6351

United States District Court, N.D. Illinois, Eastern Division

Signed September 30, 2022

Thomas G. Siracusa, Powers, Rogers & Smith, Chicago, IL, for Plaintiff.

Jade R. Lambert, Abigail Hoverman Terry, Zachary Thomas Fardon, King & Spalding LLP, Chicago, IL, Lana K. Varney, Oliver Peter Thoma, Pro Hac Vice, King & Spalding LLP, Austin, TX, Andrew Jacob Chinsky, Gregory Arthur Ruehlmann, Jr., King & Spalding LLP, Atlanta, GA, Donald F. Zimmer, Jr., Pro Hac Vice, King & Spalding LLP, San Francisco, CA, for Defendant.

Memorandum Opinion and Order

Elaine E. Bucklo, United States District Judge

After the birth of her third child, plaintiff Nidia Teran sought medical treatment for pelvic pain, recurrent urinary tract infections, and incontinence. Her primary care doctor referred her to urologist Alan Sadah, who diagnosed her with Grade IV cystocele with cervical/uterine prolapse—the most severe stage of pelvic organ prolapse ("POP") characterized by herniations of the bladder and uterus. In March of 2014, Dr. Sadah performed a pelvic floor reconstructive surgery called a sacrohysteropexy using a polypropylene "Restorelle Y" surgical mesh implant—a product manufactured by defendant Coloplast—to repair her condition. But plaintiff's pelvic pain only worsened, and in June of 2015, she underwent a second surgery to remove her uterus and to explant the Restorelle Y mesh. During that procedure, a cystotomy occurred, i.e., a surgical instrument sliced a hole in plaintiff's bladder, necessitating further surgical repairs and ultimately bladder reconstruction. Since then, plaintiff has undergone numerous additional surgeries and procedures to repair recurrent vesicovaginal fistulas and remove bladder stones, and she continues to suffer from chronic pelvic pain, urinary tract infections, urinary frequency, urgency, incontinence, bladder spasms and a need for catheterization.

On March 31, 2016, plaintiff filed this lawsuit in the multi-district litigation ("MDL") pending in the U.S. District Court for the Southern District of West Virginia, identifying eighteen counts for injuries she claims were caused by defendant's Restorelle Y surgical mesh and defendant's failure to warn her adequately of the risks associated with implantation of that product. After the case was transferred here following discovery, defendant moved for summary judgment of all of plaintiff's claims. In conjunction with that motion, defendant filed motions to exclude testimony proffered by plaintiff's experts, Drs. Ostergard, Chughtai, and Mays. Plaintiff's opposition to summary judgment is likewise accompanied by Daubert motions seeking to exclude the testimony of defendant's experts, Drs. Culligan, Cole, Molavi, and Becker.

For the reasons explained below, I grant defendant's summary judgment motion in part, and resolve the remaining motions as follows.

I.

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). My role at this juncture is not to "weigh the evidence and determine the truth of the matter" but rather to determine if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Accordingly, I credit plaintiff's admissible evidence and draw all reasonable inferences in her favor. Id. at 255, 106 S.Ct. 2505.

Expert testimony is admissible under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), if the expert is qualified and the testimony is reliable and relevant. In my role as gatekeeper, I must determine whether: (1) the witness is qualified in the relevant field; (2) the expert's methodology is scientifically reliable; and (3) the expert's testimony will assist the trier of fact in understanding the evidence or determining a fact in issue. Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 779 (7th Cir. 2017). Importantly, "the key to the gate is not the ultimate correctness of the expert's conclusions. Instead, it is the soundness and care with which the expert arrived at her opinion[.]" Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013). Accordingly, my analysis does not "take the place of the jury to decide ultimate issues of credibility and accuracy." Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012). And because "the admissibility determination is not intended to supplant the adversarial process . . . even 'shaky' testimony may be admissible." Ortiz v. City of Chicago, 656 F.3d 523, 536 (7th Cir. 2011). See also Walker v. Ethicon, Inc., No. 12-CV-1801, 2017 WL 2992301, at *2 (N.D. Ill. June 22, 2017) (if expert testimony is reliable and relevant, "the accuracy of the actual evidence is to be tested before the jury with the familiar tools of vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.").

II.

Although plaintiff's complaint asserts eighteen counts for claims sounding in products liability, fraud, breach of warranty, consumer protection, and various other theories of liability, she tacitly concedes by her silence in response to several of defendant's arguments that she lacks evidence sufficient to take certain of her claims to trial. Accordingly, I grant defendant's motion as unopposed insofar as it seeks judgment on: plaintiff's claims under consumer protection laws (Count XIII); her warranty-based claims (Counts XI and XII); her unjust enrichment claim (Count XV); her gross negligence claim (Count XIV), her loss of consortium claim (Count XVI), and her claim captioned "Discovery Rule and Tolling" (Count XVIII).¹ What remains in dispute is whether the admissible evidence entitles plaintiff to a jury trial on her claims of negligence (Count I), strict liability-manufacturing defect (Count II), strict liability - failure to warn (Count III), strict liability - defective product (Count IV), strict liability - design defect (Count V), common law fraud (Count VI), fraudulent concealment (Count VII), constructive fraud (Count VIII), negligent misrepresentation (Count IX), negligent infliction of emotional distress (Count X), and punitive damages (Count XVII).

A. Expert Testimony - Causation

Defendant's broadest summary judgment argument is that plaintiff lacks admissible evidence that her injuries were proximately caused by her mesh implant. Under Illinois law, "proximate cause can only be established when there is a reasonable certainty that the defendant's acts caused the injury," Wintz By & Through Wintz v. Northrop Corp., 110 F.3d 508, 515 (7th Cir. 1997) (quoting Schultz v. Hennessy Industries, 222 Ill.App.3d 532, 165 Ill. Dec. 56, 584 N.E.2d 235, 241 (1991)), and products liability cases require expert testimony to establish causation, Wheeler v. C.R. Bard, Inc., No. 19-CV-08273, 2022 WL 971394, at *4 (N.D. Ill. Mar. 31, 2022) (citation omitted).

Defendants contend that neither Dr. Ostergard nor Dr. Chughtai can testify competently that defendant's product proximately caused her injuries. Because I agree that plaintiff cannot survive summary judgment without these witnesses' causation testimony, I begin by determining whether the testimony they seek to provide satisfies the Daubert standard.

Donald R. Ostergard

Plaintiff has designated Dr. Ostergard to offer opinions related to injury causation and the allegedly defective design and manufacture of Restorelle Y mesh. Dr. Ostergard is a retired urogynecologist who has published hundreds of peer-reviewed articles on the topic of urogynecology and has performed thousands of pelvic organ prolapse surgeries using polypropylene mesh and other materials. He has held several academic positions in the fields of obstetrics, gynecology, and women's health, and he has been qualified to provide testimony in a number of cases in this MDL. See, e.g., Waltman v. Bos. Sci. Corp., No. 2:12-CV-691, 2016 WL 3198322, at *13 (S.D.W. Va. June 8, 2016); Tyree v. Boston Scientific, 54 F. Supp. 3d 501, 549-53 (S.D. W. Va. 2014.). Nevertheless, defendant contends that Dr. Ostergard is unqualified to offer the opinions set forth in his expert report because he has never performed any surgery involving the Restorelle Y mesh, has never performed a robotic-assisted sacrohysteropexy with a surgical mesh implant, and has not treated patients or performed any surgery in the past decade. But there is no serious question that Dr. Ostergard is highly qualified "by knowledge, skill, experience, training, [and] education" in the medical fields relevant to his testimony. Accordingly, the issues defendant raises are better analyzed through the lens of Daubert's reliability and relevance prongs.

With respect to the first of these prongs, defendant argues that Dr. Ostergard's causation opinions are unreliable because he failed to consider likely alternative causes of plaintiff's injury. Dr. Ostergard's causation analysis proceeds through the process of differential diagnosis, which is "a standard scientific technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated." Eghnayem v. Bos. Sci. Corp., 57 F. Supp. 3d 658, 669 (S.D.W. Va. 2014). Generally speaking, differential diagnosis (or, more accurately in this context, "differential etiology") is an "accepted and valid methodology." Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010). To survive Daubert scrutiny, a differential etiology must reflect "scientifically valid decisions as to which potential causes should be 'ruled in' and 'ruled out.' " Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007) (citation omitted).

In defendant's view, Dr. Ostergard failed...